ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS – 11 - 368022
DATE: 20131021

BETWEEN:

Roy Mosherov

Applicant

– and –

Irina Kovalev

Respondent

Self-represented

Deta J. Clark, counsel for the Respondent

Carolyn Leach, Counsel, Office of Children’s Lawyer

HEARD: May 27, 28, 29, 30, 31, June 3, 4, 5, 6, 7, 10, 11, 14, 20, 21 and 25, 2013

kiteley j.

[1] The issues in this trial focused particularly on custody of the parties’ son, as well as on child and spousal support, equalization of net family property and a request by the Respondent for a restraining order. Ms. Leach acted for Michael who is now 13 years old.

Background

[2] The Applicant was born in August 1959 and is now 54. The Respondent was born in March 1962 and is now 51 years old. They married in Russia in 1983. The parties have three children: Karina born April 1, 1984; Kirill born August 7, 1986 and Michael born August 12, 2000.

[3] In 1990 the family moved to Israel and then in 1996, they emigrated to Canada.

[4] The Applicant takes the position that the separation occurred in June 2008 and that they continued to live under the same roof until December 14, 2009. The Respondent takes the position that the separation occurred on December 14, 2009. I will deal with the reasons for the difference and the consequences below. Suffice it to say that on December 14, 2009 the parents had a disagreement about whether Michael was too tired to do his homework. The disagreement escalated. The Respondent said she would call the police. The Applicant agreed that that was appropriate. The police arrived and an officer spoke to each of the parents. The officers recommended that they not stay together in the apartment. The Respondent had packed a suitcase and she offered to leave with Michael. The police escorted them to a shelter. The parties have not lived together since then.

Steps in the Litigation

[5] The Application was issued on April 8, 2011. The first case conference was held on May 25, 2011 at which time Harper J. made an order on consent granting the Respondent temporary custody and establishing a temporary access schedule that consisted of each Thursday from after school with pick up at the school playground at 3:30 until 7:30 p.m. drop off at a store parking lot and Saturdays at 10:00 a.m. from the school playground to 8:00 p.m. drop off at the store parking lot. He also referred the matter to the Office of Children’s Lawyer with a request for a s. 112 investigation. The Respondent had taken the position that Michael was allergic to dog dander that was present in the home of the Applicant. On consent, the Respondent was ordered to have a blood test conducted to determine Michael’s sensitivity to dog dander. The order further prohibited either parent from removing the child from Ontario without the written consent of the other party or a court order and directed that “neither party shall speak ill of the other in the presence of the child and communication shall be limited to arrangements for the child”. The Applicant agreed to pay temporary child support in the amount of $211 per month commencing June 1, 2011 based on 2009 income of $25000. The case conference was adjourned to July 13th for disclosure.

[6] At the case conference on September 9, 2011, on consent the access was changed to Friday to Sunday on alternating weekends and Wednesday overnights plus special arrangements for Thanksgiving weekend. The case conference was adjourned to January 13, 2012.

[7] The Respondent was ill at the time of the January 13th conference and it was adjourned on consent to March 7th with a direction that the Applicant attend the mandatory information program.

[8] On March 7, 2012, Justice Perkins held a case conference and made an endorsement in which he described this as a high conflict case involving an 11 year old child. Perkins J. urged the parents to secure counseling for him and to take all steps to reduce conflict. He noted that all issues had been discussed and he made a consent order for disclosure on financial issues. He set the settlement conference for June 11th.

[9] On May 17, 2012, Paisley J. heard the Applicant’s motion for disclosure of the child’s address; for an order prohibiting the Respondent from changing the child’s address; for an order requiring the Respondent to unblock her email; and for increased access. After summarizing their respective positions about disclosure of the address where the Respondent and child lived, Paisley J. declined to make the order requiring the Respondent to disclose the address. He also declined to substantially change the access schedule, relying on the submission by the OCL that change was contrary to the child’s wishes. Paisley J. also noted that counsel for the OCL reported Michael’s wish that his parents would resolve their differences and that he would like to have more control over when he spends time with either parent, and that the OCL advised that Michael found that having to play a role in negotiating access was difficult and stressful for him. Paisley J. did incorporate a consent as to some refinements to the consent order made on September 9, 2011 to deal with the Victoria Day long weekend, and to set a schedule for the summer that included Michael attending overnight camp and having uninterrupted time with each parent. It also provided that upon the resumption of school in September, the Applicant would have lunch with Michael every Monday following a non-access weekend. Again the order provided that neither party would make disparaging remarks about the other in Michael’s presence. Although the Respondent did not consent, Paisley J. severed the divorce from the corollary relief.

[10] On June 11, 2012, Kruzick J. held a case conference at which time he noted that the OCL would continue to be involved with a clinical assist. He ordered ongoing counseling for Michael with the sharing of costs to be resolved and he directed further disclosure from the Applicant specifically related to his business. He gave the Respondent leave to bring a motion for a restraining order. He scheduled a settlement conference for September 21, 2012.

[11] The settlement conference was held on November 7, 2012. On consent, Jarvis J. set the trial date for the week of May 21, 2013 for 6 to 7 days. The consent order established the schedule for the winter school holiday and enabled the Applicant to take Michael to the United States and to take him on a cruise to the Bahamas during the imminent vacation subject to providing a detailed itinerary as well as copies of the air and cruise tickets no later than December 6th. The itinerary was to include specific flight and other travel information, departure and arrival dates and times, hotel accommodation information and contact information for Michael and the Applicant during the trip. Upon receipt of the itinerary and copies of the tickets, the Respondent was required to provide Michael’s passport. (The evidence disclosed serious challenges to implementation of that order.) That order also permitted the Applicant to have Michael for March break.

[12] On January 14, 2013, Paisley J. granted the divorce.

[13] The parties signed Partial Minutes of Settlement on January 16, 2013 in which they agreed to a final order regarding access on school holidays and special occasions. They also agreed that Michael was free to contact either of his parents by telephone and that both parents would encourage telephone contact and endeavour to give Michael privacy during the calls. The draft orders provided by Mr. Mosherov, Ms. Clark and Ms. Leach have all incorporated those terms. The key missing piece was the summer schedule.

[14] On March 22, 2013, Stevenson J. held a settlement conference and made directions including setting a date for a Trial Management Conference on May 17, 2013; she directed the Applicant to pass the trial record by April 12, 2013; and she ordered the Applicant to produce copies of whatever documents he had regarding a pension owned by the Respondent in Israel upon receipt of which the Respondent would contact her former employer/pension plan provider and ask for details. Stevenson J. also directed the parties to provide updated financial statements, proof of current income, to complete the Trial Management Conference endorsement and to provide witness lists by May 3rd as well as exchange documents briefs by May 17th.

[15] On May 17, 2013, Perkins J. held the Trial Management Conference at which time he gave detailed directions for the trial and estimated it would take 9 days.

[16] The trial began on May 27th and finished June 25th lasting 16 days, some of which were part days to accommodate the extended time needed. Since interpreters were involved throughout the trial, the pace was slower than normal. Early on in the evidence, it became clear that the parties had not made a plan for the imminent summer holidays which included Michael’s Bar Mitzvah in July. Mr. Mosherov had made a proposal about Father’s Day to which he had received no response. I indicated to counsel and the parties that I could not finish the evidence in advance of Father’s Day and quickly enough to make an order for the summer. I strongly encouraged the parties to arrive at an agreement so that Father’s Day and final planning about Michael’s summer could occur. In the end, Ms. Leach, Mr. Mosherov and Ms. Clark reported that they had reached a consensus but they all agreed that it would not be reported to me.

[17] During the trial, I heard evidence from both parties about the condominium apartment that they jointly owned in Israel. Both parties wanted to sell it but had been unable to agree on the mechanics of the sale. On consent, on the last day of the trial, I made an order specifying how the parties would conduct the sale. At paragraph 10 I ordered that if, following the release of these reasons for decision the parties are unable to agree as to the distribution of the proceeds of sale, then either could bring a motion before me for a decision. I have dealt with that issue below in the equalization of net family property.

[...FULL REMAINDER OF ORIGINAL TEXT CONTINUES VERBATIM...]

Kiteley J.

Released: October 21, 2013